bob tarantino

"fielding desperate calls"

One of the consistently amazing things about the ongoing debate in Canada regarding access to justice is the absolute insistence of the organized legal profession that they have virtually no responsibility for addressing the matter - or at least no responsibility which would extend to impinging on the protected privileges of the profession.

This Maclean's story is telling: as the article details, part of the cause of increasing (and increasingly unaffordable) legal fees in Canada is the artificial restriction on the supply of lawyers - as even the Chief Justice of the Supreme Court of Canada has repeatedly stated, the lack of affordable lawyers is an "acute" crisis.  The numbers are restricted by the provincial law societies, who impose the regulations which admit individuals to the practice of law.  One of the mechanisms used to artificially depress the number of lawyers is the number of law students graduating each year: as the Maclean's piece notes, the number of law school places available in Canada on a per capita basis is significantly below the numbers in comparable countries, and worse, the number of places hasn't meaningfully budged in decades.  This is hardly unique to the legal profession - Canadians are now in the throes of a similar healthcare crisis because our governments made the brilliant decision about twenty years ago to drastically limit the number of doctors graduating, evidently not accounting for the fact that populations in industrialized liberal democracies have this bizarre tendency to increase as the years go on.

The response of the profession?  "Pfffffttt - not our problem."  The Law Society of Upper Canada harrumphs that it is "simplistic to think that the high cost of legal services and problems of access to justice can be solved by simply adding more lawyers to the market" - it's a bit unclear who is saying that the problem could be solved by adding more lawyers, but surely the onus is on the Law Society to demonstrate why it would be a bad idea to add more lawyers.

And buried in that last sentence is the core truth of what this is really about: dereliction of duty on the part of the legal profession.  Over at slaw, the point manages to get entirely overlooked:

"controlled entry can make sense (whether or not it’s fair to entrants or the public) to the regulators"

No - controlled entry cannot make sense "whether or not it's fair to entrants or the public".  The entire animating purpose of the legal profession, of any profession, is that it act in the public interest.  If something is "unfair to the public" then it is not a course of action which the "regulators" (i.e., the law societies) are entitled to undertake.  This is not an option - it is an obligation.  The protection and promotion of the public interest is the entire animating principle for the privilege of self-governance accorded to the legal profession.

Section 4.2 of the Law Society Act (Ontario) provides as follows:

In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

Notice anything missing there?  Right - there's nothing about protecting the market position of current lawyers.  Zero.  Full responsibility for the regulation of the legal profession has been devolved to the profession itself on the condition that it exercise it's responsibilities in accordance with its fundamental duty to protect the public interest.  The public interest is manifestly not being served - every piece of empirical evidence indicates this, the clamour from the public, the judiciary and members of the bar itself keeps increasing and yet... and yet.  The acute crisis continues on.  Obvious and easy solutions, even if only partial solutions, are dismissed out of hand.  At some point this will all catch up with the profession - continued dereliction of duty by the organized bar will be met with the response that the principles of governance in a liberal democracy demand: the privilege of self-regulation will be revoked.

Stanford Center on the Legal Profession

Mitch Kowalski noted that Stanford Law School has recently opened the Stanford Center on the Legal Profession, whose mission includes "research, teaching, programs and public policy initiatives on crucial issues facing the bar" with a focus on "issues of professional responsibility and the structure of legal practice".  As Mitch pertinently asks, "where is the Canadian equivalent?"

Indeed.  Centres such as the Stanford CLS tend to live or die depending on the dedication, enthusiasm and innovation of the faculty members who initiate and staff them.  Which means it's past time to get Jordan Furlong appointed to an academic post somewhere.

UPDATE: Ooops.  "Where is the Canadian equivalent?"  Here: The Centre for the Legal Profession at the University of Toronto Faculty of Law.

Succession in Law Firms

Jordan Furlong posted an insightful piece on the motivations (or, properly, the lack thereof) behind the failures of many law firms to handle succession issues well (not "wills and estates", but transitioning power and practices between generations of lawyers).  Furlong posits four vectors, which for lack of a better term I'll call "pecuniary" factors: loss of power; resistance to change; few future leaders (because compensation mechanisms do not encourage handing off key client files); and generational conflicts.

A fifth important vector is a deeper, structural attitudinal problem: law firms (at least that subset of law firms with which I think the discussion is concerned, namely large corporate law firms) haven't yet come to grips with the fact that there is a succession issue, because few of them have come to grips with the fact that they have transformed into quasi-corporate entities.  Despite the headlong plunge into becoming business firms (in the sense that they are now profit-focused undertakings, which is something slightly, but importantly, different from professional associations), lawyers are still uncomfortable with acknowledging that they are now subject to the same concerns that have plagued the modern corporation for its century-long existence.  There is an entire body of learning and class of technocrats (we call them "managers") devoted to managing the challenges which face large corporate entities - yet lawyers are resolutely reticent about drawing on that vast reserve of knowledge and talent.  How many law firms across the country employ non-lawyer management professionals as part of their governance infrastructure?  Canada's largest law firm (with nearly 700 lawyers, to say nothing of non-legal staff) only adopted a corporate governance structure four years ago.  It's only been in the last twenty to thirty years that the "mega-firm" structure has come to the Canadian legal landscape - a lawyer who was in his early forties in the mid-80s is just now getting to the point where retirement and relinquishment of power is an issue.  In short, lawyers are bad at succession planning in the large firm context because they largely haven't had to deal with it before (at least in the context of the current large and diffuse structure that many firms have taken on) and may not yet have realized that they need to at all.